FILED by_=---- r' '' UNITED STATES DISTRICT COURT SOUTHERN OISTRICT OF FLORIDA MAR 0 5 2002

LORETTA FABRICANT, on behalf of herself and all others similarly situated,

Case No. ~ ~ - ~ ~ ~ ~ - & I V & O R E N O Plaintif is, (formerly 98-1281-CIV-NESBITT)

VS. ORDER DENYING MOTION FOR RECONSIDERATION

'%

SEARS ROEBUCK, et al.

Defendants. /

This cause comes before the Court upon the Sears and Allstate

Defendants' Motion for Reconsideration of the Court's dismissal of

the counterclaim alleging unjust enrichment. The motion to

reconsider is denied beta-use the Court finds that the contract terms

are contrary to public policy and thus void.

BACKGROUND

This case concerns the Defendantsr practice of marketing a

package of credit life, disability, unemployment and leave of

absence insurance coverage in cmnection with the Sears Credit Card

called the Sears Credit Protection Plan ("SCPP") . Count I11 of

Plaintiffsf Complaint alleges the following violations of Florida

statutes regulating the sale'of insurance: (1) Defendants failed to

make specific disclosures and obtain written acknowledgment of those

disclosures required by § 627.679; ( 2 ) Defendants failed to submit

applications for SCPP credit insurance with the Florida Department

of Insurance as required by S 627.682; ( 3 ) Defendants failed to

comply with the licensing requirements of S 626.321. a Second

Amended Class Action Complaint ¶ 50-61. As a result of these

violations of Florida law, Plaintiffs contend that the SCPP

"insurance contracts between Defendants and Plaintiffs are illegal

and imenforceable." Id. at ¶ 58. As innocent parties to these

illeqal contracts, Plaintiffs request restitution in the form of

disgorgemcnt of all premiums paid under these allegedly illegal

contracts.

Defendants Sears National Bank ("Sears"), Allstate Life

Insurance Company and Allstate Insurance Company (collectively

"Allstate") each asserted "conditional" counterclaims. See Sears

Roebuck & Co.'s and Sears National Bank's Amended Answer,

Affirmative Defenses and Counterclaims (D.E. # 288); Allstate Life

Insurance Company's and Allstate Insurance Company's Amended Answer,

Affirmative Defenses and Counterclaims (D.E. # 1 7 7 ) . This Court

dismissed all three counterclaims filed by Sears and both

counterclaims filed by Allstate. See Order on Motion to Dismiss

Counterclaims (D.E. # 410) . 1

Both Sears and Allstate seek reconsideration of the Court's- - -

Order dismissing one of these conditional counterclaims. The

counterclaim at issue alleges that "in the event the Court . . . finds that the SCPP insurance policies are unenforceable or voidable,

[Defendants] bring a conditional counterclaim against members of the

class who have been unjustly enriched by receiving the benefit of

the . . . SCPP insurance package. " Sears' Third Counterclaim ¶ 1;

Allstate's Third Counterclaim 41 1. Defendants allege that class

members received unjust enrichment in the form of both "peace of

mind and claims paid to class members1 due to their enrollment in

SCPP." - Id. at ¶ 4. Defendants seek reconsideration of the order

dismissing this counterclaim, contending that the Court erred in

construing their counterclaim as seeking unjust enrichment due to

void, rather than, as they assert, boidable contracts.

DISCUSSION

Reconsideration of a prior order is proper when the moving

party establishes (1) an intervening change in controlling law, (2)

availability of new evidence, (3) the need to correct manifest

errors of law or fact, or (4) patent misunderstanding by the Court

of the party's arguments. Z . K . Marine, Inc. v . M/V Archiqetis, 808

F. Supp. 1561, 1563 (S.D. Fla. 1992). The motion is not to be used

"as a vehicle to present new arguments or evidence that should have

been raised earlier, introduce novel legal theories, or repackage

familiar arguments to test whether the Court will change its mind."

proaodon v. National Healthcare Corv., 103 F. Supp. 26 1322, 1338

(N.D. Ga. 2000). The rationale for this rule prevents a litigant

from having "two bites at the apple." American Home Assurance Co.

v. Glenn Estess & Assocs., 763 F. 2d 1237, 1239 (11th Cir. 1985) . Defendants state that this motion proceeds under the third and

Persons who received monetary benefits in excess of the premiums paid are excluded from this class.

fourth prongs. Accordingly, the Court will address only those

arguments which attempt to correct alleged manifest errors of law

and arguments addressing the Court's "misunderstandingu of the

Defendants' arguments.

The central contention by Defendants of the Court's

misunderstanding or manifest error of law is the premise of this

conditional counterclaim - the effect of the Court finding the

insurance policies "unenforceable." The condition precedent for the

Court finding the policies "unenforceable" would be for the

Plaintiffs to prove that the contracts violated the Florida statutes

enumerated in Count I11 of the Complaint. If Plaintiffs prove the

insurance contracts violated Florida law, then Defendants claim that

the contracts become voidable, not void as Plaintiffs claim.'

The sole authority cited by Defendants for the proposition that

these insurance contracts may only become voidable is Justice

Breyer's concurrence in Oubre v. Enterov O~erations, Inc., 522 U.S.

422, 431-432 (1998) (Breyer, J. concurring). In Oubre, Justice

Breyer, relying primarily on the Restatement (Second) of Contracts,

explained the difference between voidable versus void contracts.

Justice Breyer concluded that the agreement at issue was only

voidable, not void, because the statute impacting the validity of

the contract reflected concerns about the conditions surrounding the

* Defendantsr motion for reconsideration essentially claims that Plaintiff's improperly pled Count I11 by seeking the wrong remedy.

4

178 (1). This requires a balancing of interests between the parties'

interest in enforcement and the public policy against enforcement.

Id. at comment b. The public policy may be based on either (1)

legislation3 or (2) the need to protect some aspect of public

welfare. Restatement (Second) of Contracts § 179. Legislation is

used "in the broadest sense to include anv fixed text enacted by a

body with authority to promulgate rules, including not only

statutes, but constitutions and local ordinances, as well as

administrative regulations pursuant to them." Id. § 178 at comment

Defendants assert that the statute must specifically provide that the contract is void. Numerous Florida cases have found contracts or their terms void based on statutes that do not so provide expressly. As the Restatement itself explains, "only infrequently does legislation, on grounds of public policy, provide that a term is unenforceable." Restatement (Second) of Contracts § 178 at comment b. First, a statute is unnecessary to find the source of public policy; a Court may rely on its own perception of a need to protect some aspect of the publi~ welfare. Id. Alternatively, a court may rely on relevant legislation "although [the statute] says nothina explicitlv about unenf orceability. " - Id. (emphagis added) .

In contrast to Defendants' assertion, the opposite is presumed. The Supreme Court of Wisconsin explained this basic principle over a hundred and forty years ago: 'It is not necessary that the law should expressly say that a contract in violation of it shall be void. It is sufficient for [the statute] to prohibit and its invalidity follows as a legal consequence. " Aetna Ins. Co. v. Harvev, 11 Wis. 394 ( 1860 ) . This principle remains true today: '[Wlhere the legislative intent is uncertain or cannot be determined and when the statute is silent and does not provide to the contrary, a contract in contravention of [the statute] is void." Beard v. American Aaencv Life Ins. Co., 550 A.2d 677, 687 (Md. 1988) (finding an insurance contract void based on a statute that did not expressly provide that contracts in violation were void). Accordingly, if Defendants' insurance contracts contravene the statutory law of Florida, they may be deemed void.

a (emphasis added); see also id. § 179 at comment b (explaining the

term legislation is the same for § 178 and § 179); 11 Fla. Jur. 2d

S 112 (explaining that a contract "in contravention of a statute . . . although not immoral, is equally invalid as with one that is malum

in se") .' Therefore, Florida statutes governing the sale and

marketing of insurance are an appropriate source of public policy.

The insurance statutes upon which violations are alleged fall

into three categories: (1) substantive deficiencies of the insurance

contracts which failed to make the appropriate disclosures and

obtain the requisite written acknowledgments mandated by Florida

law, (2) failure to obtain the necessary approval by the Department

of Insurance to ensure that the forms complied with ~loriha law, and

(3) violation of licensing provisions, including the sale of

insurance by unlicensed individuals. The public policy behind each

of these statutes is clear. Regulation of the business of insurance

is largely left in the hands of the states. Humana, Inc. v.

1

For the first time, Defendants cite 5 627.418 (1) in support of its position that insurance policies may not be rendered void unless expressly so provided by statute. A motion for reconsideration exists to correct manifest errors of law or fact or present newly discovered evidence, not to present authorities available at the time of the first argument t~ provide litigants a second "bite at the apple" by attempting to persuade the court through a different tact once the party discover the first set of arguments did not persuade. See Marine, Inc. v. M/V Archiaetis, 808 F. Supp. 1561, 1562 (S.D. Fla. 1992). Moreover, this statute does not address Defendants' counterclaim, but the viability of Plaintiff's claim in Count 111; nor does it suggest that the insurance contracts would be voidable, rather than void.

Forsyth, 525 U.S. 299, 306 (1999) (explaining that the McCarran-

Ferguson Act was left largely in the hands of the states and federal

law applies only when the federal law does not directly conflict

with state regulation or would when the federal law would not

frustrate any declared state policy or interfere with a staters

administrative regime). Thus, the State of Florida has a strong

interest in enacting regulations governing the sale of insurance

within its borders.

The disclosures and acknowledgments mandated by § 627.679

consist of substantive regulations of insurance by requiring certain

information to be conveyed about the policy. Likewise, § 624.605

requires an insurance company to file and seek approval of insurance

applications by the Department of Insurance to ensure compliance

with the Florida insurance laws. While 5 624.605 appears

procedural, it provide substantive protection to the public by

enabling the Department of Insurance to review, monitor and ensure

that an insurance company's pplicies and forms comply with the

applicable statutes. Finally, the licensing requirements control

who is allowed to sell insurance by indirectly ensuring compliance

with substantive provisions - by requiring those selling insurance

comply with the regulations or face the threat of loss of livelihood

for failure to abide by those regulations. Each of these statutes

serve to provide important protections for the public regarding the

sale of insurance in this state.

Defendants contend t h a t t he purpose, o r performance, of t h e

c o n t r a c t must be c r i m i n a l i n o rder f o r t h e c o n t r a c t t o be void ,

r a t h e r t han merely vo idab le . See Defendantr s Br ie f a t 6 . I n

c o n t r a s t , F l o r i d a law i s c l e a r t h a t i f a c o n t r a c t ' s " format ion o r

i t s performance i s c r i m i n a l , t o r t i o u s o r opposed t o p u b l i c p o l i c y ,

t h e c o n t r a c t o r ba rga in i s i l l e g a l . " Thomas v . Ra t ine r , 4 6 2 So. 2d

1157, 1159 ( F l a . 3d D i s t . C t . App. 1 9 8 4 ) (bo ld emphasis added) . The

R a t i n e r c o u r t determined t h a t where t h e format ion of t h e c o n t r a c t

v i o l a t e d a s t a t u t e r e g u l a t i n g s o l i c i t a t i o n , t h e e n t i r e agreement was

vo id a b i n i t i o . Id.; s e e a l s o Spence Pavne Masinaton & Grossman,

P .A. v . P h i l i ~ M . Gerson, P . A . , 483 So. 2d 775, 776, 777 ( F l a . 3d

D i s t . C t . App. 1986) (same) . S i m i l a r l y , s e c t i o n s 627.679 and

624.605 r e g u l a t e t h e format ion of i n su rance c o n t r a c t s : i n s u r e r s must

p rov ide c e r t a i n d i s c l o s u r e s and o b t a i n c e r t a i n acknowledgments from

t h e i n s u r e d s and must f i l e a p p l i c a t i o n forms and use forms approved

by t h e Department o f Insurance i n o r d e r t o i s s u e a v a l i d i n su rance

p o l i c y . 1

Numerous d e c i s i o n s cons t ru ing insurance c o n t r a c t s have h e i d

t h a t p u b l i c p o l i c y i s v i o l a t e d by an in su rance p o l i c y t h a t d e f e a t s

t h e purpose and i n t e n t of an insurance s t a t u t e and such p r o v i s i o n s

Likewise, t h i s p r i n c i p l e i s n e i t h e r new nor unique. Near ly a cen tu ry and a h a l f ago, t h e Supreme Court of Wisconsin s i m i l a r l y d e c l a r e d an insurance p o l i c y vo id where an i n s u r a n c e company had f a i l e d t o comply with t h e p r o v i s i o n s of t h e s t a t u t e r e q u i r i n g t h e making of a c o n t r a c t i n a manner s p e c i f i e d by t h e s t a t u t e . Aetna I n s . Co. v. Harvev, 11 Wis. 394 , 394 (1860) .

are nugatory and void. Government Emplovees Ins. Co. v. Farmer, 330

So. 2d 236, 237 (Fla. 1st Dist. Ct. App. 1976); e.s. Green v. Life

& Health of America, 704 So. 2d 1386, 1389 (Fla. 1998) (quoting Kinq

v. Allstate Ins. Co., 906 F.2d 1537, 1540 (11th Cir. 1990)

(explaining that the statutory provisions of the insurance code can

serve to void the contrary provisions of the policy) ) . As the

Florida Court of Appeal explained forty years ago, "it would serve

no purpose to pass such regulatory acts if parties could with

impunity violate them." Schaal, 135 So. 2d at 257. If the

insurance policies here failed to comply with the applicable

insurance statutes governing the formation of insurance contracts,

these policies are subject to the general rule regarding illegal

contracts - they are void.

Another court in this district recently determined that the

disclosures and written consent mandated by § 627.679 served the

important 'stated purpose of protecting borrowers from 'duplication

or overlapping of insurance coyerage.'" London v. Chase Manhattan

Bank, No. 99-1298-CIV-UNGARO-BENAGES, slip. op. at 24 (S. D. Fla.

Aug. 9, 2001). The London court concluded that defendants'

violation of 5 627.679 entitled plaintiffs to restitution of paid

premiums for selling credit life and disability insurance in

violation of that statute. Id. at 25. Other states have likewise

concluded that failure to comply with formation requirements of the

insurance code requiring written consent renders the entire policy

void ab initio. E.q. Hilfiqer v. Transamerica Occidental Life Ins.

h, 505 S.E.2d 190, 193 (Va. 1998) (finding that failure to obtain

written consent in compliance with the statute made the policy void

ab initio); Time Ins. Co. v. Lamar, 393 S.E.2d 734, 735 (Ga. App.

1990) (finding that a contract violating the statutory requirement

of written consent is void ab initio); see Dukes v . Household

Finance Corp., 224 S.E.2d 107, 108 (Ga. App. 1976) (explaining that

failure to provide a written itemized statement as required by

Georgia law would void the group credit life and disability

insurance contract); Schaal, 135 So. 2d at 257 (finding oral

contract for plaintiff's advertising services void based on statute

requiring written authorization of expenditures for political

campaigns). Accordingly, if this Court concludes that these-

Defendants violated § 627.679 by failing to make the requisite

disclosures or obtain appropriate written consent in connection with

the sale of the SCPP, then the insurance is properly considered

void. d

The Florida Court of Appeal has made clear that failure to file

insurance forms with and have the forms approved by the Department

of Insurance renders the policy null and void. American Mutual Fire

Ins. Co. v. Illinuworth, 213 So.2d 747, 749 (Fla. 2d Dist. Ct. App.

1968); see also Hawkins Chemical, Inc. v. Westchester Fire Ins. Co.,

'159 F.3d 348, 352 (8th Cir. 1998) (explaining that an insurance

policy or exclusion not filed with the Commissioner of Insurance is

unenforceabl-e under Minnesota law) . The Illinaworth court construed Florida Statute 627.01091 [now § 627.410(1)Il6 which prohibited the

delivery or issuance of any insurance policy, annuity contract,

application form, printed rider, endorsement form or form of renewal

certificate unless filed with and approved by the commissioner. &&

The insurance company attempted to refuse coverage based on an

exclusionary endorsement form that the insurance company had failed

to file the with the insurance commissioner as the statute required.

Id. at 747, 750. The Florida Court of Appeal determined that "any - endorsement written on the unapproved form must be rendered void."

J& at 750. This Court is asked to interpret S 627.682, which

At the time of Illinaworth, § 627.01091 provided:

No basic insurance policy or annuity contract form, or application form where written application is required and is to be made a part of the policy or contract, or group certificates issued under master contracts delivered in this state, or Printed rider or endorsement form or form of renewal certificate, shall be delivered or issued for deljvery in this state, unless the form has been filed with and approved by the commissioner. This provision shall not apply to surety bonds, or to specially rated inland marine risks, nor to policies, riders, Endorsements, or forms of unique character designed for and used with relation to insurance upon a particular subject (other than as to disability insurance), or which relate to the manner of distribution of benefits or to the reservation of rights and benefits under life or disability insurance policies and are used at the request of the individual policyholder, contract holder, or certificate holder. As to group insurance policies effectuated and delivered outside this state but covering persons resident in this state, the group certificates to be delivered or issued for delivery in this state shall be filed with the commissioner for information purposes only at his request.

In 1971, this section was renumbered as 5 627.410.

similarly requires that "[all1 forms of policies, certificatess of

insurance, statements of insurance, applications for insurance . . . of credit life or disability insurance shall be filed with an

approved by the department before use as provided in 55 627.410 and

627.411." Fla. Stat. Ann. 5 627.682. Section 627.682 does not

merely employ a similar statutory scheme as the one at issue in

Illinuworth, it expressly refers to the same statute at issue in

Illinqworth and requires filing and approval "as provided in" §

627.410. As Illincrworth held that failure to file and obtain

approval of the form rendered the policy on an unapproved form void,

Illinqworth, 213 So.2d at 749, then a violation of 5 627.682

likewise renders the policy based on an unapproved form void.

Accordingly, if Defendants violated 5 627.682 by failing to file and

obtain approval of the SCPP forms, then the insurance is void.

Florida law is well-settled that failure to obtain the

requisite licenses to conduct business renders the contracts made

by the unlicensed to perform Aicensed services illegal and void.

Vista Desiqns v. Silverman, 774 So. 2d 884, 885 (Fla. Dist. Ct. App.

2001) (requiring unlicensed attorney to disgorge the funds received

from client through a contract that was void ab initio due to

illegality); Steinbera v. Brickell Station Towers, 625 So. 2d 848,

849 (Fla. Dist. Ct. App. 1993) (finding contract by unlicensed

mortgage broker illegal and void); see also In re Ri~on Citv, 102

F. 176, 183 (5th Cir. 1900) ("any contract which undertakes ... to

put in charge . . . any unlicensed person -- no matter how well

qualified otherwise . . . -- ought to be held void"). See senerallv Annot., Recoverv Back of Monev Paid to Unlicensed Person Required

bv Law to Have Occugational or Business License or Permit to Make

Contract, 74 A.L.R.3d 637 (1976).

The broad basis for the doctrine that contracts of certain unlicensed persons are unenforceable is that the courts should not lend their aid to the enforcement of contracts where performance would tend to deprive the public of the benefits of regulatory measures.

Cooper v. Paris, 413 So. 2d 772, 773 (Fla. Dist. Ct. App. 1982)

(citing Williston on Contracts, § 1765, p. 2 4 7 ) . Likewise, the

Restatement advises that a party's failure to comply with a

licensing requirement may support a finding of unenforceability on

grounds of public policy. Restatement (Second) of Contracts § 181..

A licensing requirement designed to protect public welfare provides

greater weight to a finding of "illegality." - Id. at comment c.

The licensing of insurance agents, like the licensing of attorneys,

doctors and mortgage brokers, iq designed to protect the public from

being victimized by incompetent or unethical pzofessionals.

Manasement Com~ensatian Grow v. United Securitv Emplovee Proarams,

Inc., 389 S.E.2d 525, 527 (Ga. App. 1989) (finding that contracts

made in violation of statutes requiring life insurance agents to be

licensed were void and the violating party could not recoverj; see

also NcLarnb v. Phillips, 129 S.E. 570, 570 (Ga. App. 1925) - (explaining that where the license is not imposed only for revenue

purposes, but to protect the public from improper, incompetent, or

irresponsible persons, violating the licensing statute renders the

contract void and unenforceable) . 7 Accordingly, if the sale of SCPP

insurance package violated § 626.321, it may serve as a basis for

declaring the contract void.

Defendants contend that a determination that the Plaintiffsf

coverage is void will somehow void the coverage of non-class members

- presumably those who choose to opt-out or those excluded from the

class - and therefore, such a result demands a determination that

the policies are only voidable if they violate Florida law. This

argument is a chimera. Once again, this Court applies the basic

principles of contract law to insurance. Generally, a party may not

seek restitution for performance rendered under an illegal contract.

Fabricant v. Sears Roebuck & Co., 202 F.R.D. 306, 309 (S.D. Fla.

2001) (citing Restatement (Second) of Contracts 5 197). Plaintiffs .- .

proceed under an exception to this general rule - that they are

innocent parties to the illega1,contract - that allows them to seek

restitution. Id. The insured party is entitled to seek restitution

when they are not in pari delicto with the insurer and are the party

for whose protection the statute was enacted. Latham Mercantile &

Commercial Co. v. Harrod, 8 1 P.2d 214, 216 (Kan. 1 9 0 5 ) . The basic

Again for the first time, Defendants suggest that § 626.141 would prevent recovery based on violations of § 626.321. Even if this is true, this only attacks the viability of Plaintiff's claim; it does not suggest that if that the insurance contracts would be merely voidable, rather than void.

rationale is one of fairness and efficiency based on the different

positions of the parties:

[Tlhe party insured cannot, without great difficulty, discover whether the insurer has complied with all the statutory requirements or not . . . it would be unreasonable to require every person to whom a corporate insurer offers a contract of insurance should make an exhaustive investigation in order to discover whether his co-contractor has been fully qualified to make the agreement that is proposed . . . [ T I he insured has the right to presume that the insurer has complied with all the requirements of law.

Robinson v. Life Co., 79 S.E. 681, 684 (N.C. 1913) (quoting Vancer s

Treatise on Insurance) ; see also Hvde Ins. Aaencv, Inc. v. Dixie

Leasina Cor~., 215 S.E.2d 162, 166 (N.C. App. 1975) (quoting and

relying on the soundness of this rationale). In contrast, these

counterclaims state no exception to the general rule that would

permit Defendants a valid claim for restitution.

More importantly, the exception under which the Plaintiff Class

proceeds is not available to the Defendants against- the insureds

whether members of this class or not. If a non-class member chooses 5

not to allege a claim against Defendants based on these violations,

then in order for that policy to be declared void, Defendants would

have to claim that the contract is illegal in an attempt to avoid

coverage. Not surprisingly, other courts have addressed the

situation of an insurance company attempting to avoid payment based

on the insurance company's own failure to comply with a statute.

The same rationale allowing the insured's recovery does not apply

to allow the insurer to avoid coverage based on its "own infraction

of the law." Id. For nearly a hundred years, "the great weight

of authority" has precluded insurance companies from seeking to

avoid payment for coverage based on their own violation of the law.

a; Winston-Norris Co. v. Kinq, 249 P. 319, 321 (Ok. 1926) (citing Phenix Ins. Co. v. Pennsvlvania Co., 33 N.E. 970 (Ind. 1893)); see

Hvde Ins. Aaencv, 215 S.E. 2d at 166 (concluding that this "rationale

is sound" and finding that where insured did not knowingly engage

in conduct by statute, insurer could not plead illegality to benefit

from own wrongdoing). An insurer is thus estopped from pleading

illegality to escape liability. Id. (quoting Robinson, 79 S.E. at

784). As applied here, Defendants are estopped from utilizing the - illegality of these contracts based on their own infractions to the

detriment of the policy holders. Estoppel not only prevents

Defendants from seeking restitution from class members based upon

Defendants' own violations of these Florida statutes, but also

prevents Defendants from denying coverage to those insured parties

who are not part of this action, Accordingly, these counterclaims

were properly dismissed by Judge Nesbitt.

CONCLUSION

Accord ing ly , i t i s he reby ORDERED and ADJUDGED t h a t Def e n d a n t s f

Motion f o r R e c o n s i d e r a t i o n (D.E. #412) i s DENIED. c- DONE and ORDERED, i n Chambers, Miami, F l o r i d a , t h i s 7

d a y o f March, 2002. ,

cc: Counsel f o r P l a i n t i f f s Michael A. Hanzman, Esq. Hanzman, Cr iden, Chaykin & Rolnick , P.A. 220 Alhambra C i r c l e , S u i t e 400 C o r a l Gables FL 33134

Rober t Her tzberg , Esq. 100 S.E. 2nd S t r e e t , S u i t e 3550 Miami FL 33131

Rober t Ader, Esq. 100 S.E. 2nd S t r e e t , S u i t e 3550 Miami FL 33131

Counsel f o r Defendants S e a r s Roebuck & S e a r s N a t i o n a l Bank James C. Schroeder , Esq. Mayer, Brown & P l a t t 190 S. La S a l l e S t r e e t Chicago I L 60603 1

J e f f r e y B. Shap i ro , Esq. A r n s t e i n & Lehr 201 S. Biscayne Blvd., S u i t e 400 Miami FL 33131

Counsel f o r Defendants A l l s t a t e I n s u r a n c e Com~anv & A l l s t a t e L i f e Insurance Com~anv J o e l S. Feldman, Esq. Sachnoff & Weaver, L td . 30 S. Wacker Drive, 2 9 t h F l o o r Chicago IL 60606

Anthony H. P e l l e , Esq. Katz, Barron, S q u i t e r o & Faus t , P.A. 2699 S. Bayshore Drive, 7 t h F l o o r M i a m i FL 33133